Opinion
NOT TO BE PUBLISHED
Contra Costa County, Super. Ct. No. 0715946
Jones, P.J.
Charles E. Brown appeals from a judgment entered after a jury convicted him on two counts of robbery, (Pen. Code, §§ 211, 212.5, subd. (c) ) one count of attempted robbery, (§§ 211, 212.5, subd. (c), 664) one count of evading a police officer, (Veh. Code, § 2800.1) one count of resisting a police officer, (§ 148, subd. (a)(1)) and four counts of hit and run driving. (Veh. Code, § 20002, subd. (a).) He contends his conviction must be reversed because the prosecutor committed misconduct during final argument. We reject this argument and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 25, 2007, shortly before midnight, Lizbeth Sanchez, her younger sister Cindy, and Lizbeth’s 13-year-old daughter Kristyne, were in the parking lot of the Food Maxx store on San Pablo Avenue in San Pablo. As they loaded groceries into their car, a man later identified as appellant walked up to Lizbeth and said, “This is a robbery. Give me your purse. Give me your fucking purse.” Appellant grabbed the strap of Lizbeth’s purse and tried to pull it from her shoulder. When Lizbeth resisted, appellant pulled a crowbar from his jacket and hit Lizbeth. Cindy came to her sister’s aid. She jumped on appellant and grabbed him by the neck. Appellant dropped the crowbar and relinquished the purse.
Kristyne was standing nearby holding her aunt Cindy’s purse. Appellant, apparently realizing he could not steal Lizbeth’s purse, walked up to Kristyne, grabbed Cindy’s purse, and started to run away. Cindy removed her shoes and ran after appellant. She caught him quickly, grabbed him by the neck, and placed him in a chokehold. At that point, appellant started to yell for help.
A woman later identified as Latanya Gary, came to appellant’s aid. She drove up in a older model blue Cadillac, got out, and told appellant to “‘[l]et it go.’” Appellant and Gary then got into the Cadillac and drove off.
Meanwhile, a woman named Josefina Vallejo was in her car at the Food Maxx parking lot when she heard a girl scream for help. Vallejo saw several people fighting over a purse. Vallejo called 911 and reported that “people were getting attacked.”
Officer Mark Galios of the San Pablo Police Department was on patrol that evening with a trained police dog. He responded to Vallejo’s call and saw a blue Cadillac with its light off speeding toward the exit of the Food Maxx parking lot. Galios activated his lights and tried to stop the Cadillac from leaving. The Cadillac would not stop. It drove over a concrete barrier and onto San Pablo Avenue. Galios activated his siren and began pursuit.
As Officer Galios followed, the Cadillac careened down a residential street and collided with four cars, causing considerable damage. Finally, the Cadillac stopped and appellant jumped out and fled on foot. Galios released his police dog. The dog grabbed appellant’s arm and pulled him to the ground. After a brief struggle, Galios placed appellant in handcuffs.
Shortly thereafter, the three victims and Vallejo were brought to the scene of appellant’s arrest. All of them identified appellant as the man who was involved in the robbery.
Based on these facts, an information was filed charging appellant with three counts of robbery, one count of evading a police officer, one count of resisting a police officer, and four counts of hit and run driving. As is relevant here, the information also alleged appellant had 11 prior strikes within the meaning of the three strikes law, (§ 667, subd. (b)-(i)) and had 10 prior serious felony convictions within the meaning of section 667, subdivision (a)(1).
The case proceeded to trial where jurors convicted appellant on all counts except one charging the robbery of Cindy Sanchez. As to that count, the jurors convicted appellant of attempted robbery. In a court trial that followed, the court found the prior strike and prior serious felony conviction allegations to be true.
Subsequently, the court sentenced appellant to a determinate term of 45 years in prison followed by an indeterminate term of 49 years to life.
II. DISCUSSION
Appellant contends his conviction must be reversed because of prosecutorial misconduct. To put his argument into context, further background is necessary.
Defense counsel made the following comments to the jurors during his opening statement:
“Misunderstanding. That’s what this case is going to be about: a misunderstanding. The evidence will show that... Mr. Brown did not intend to rob anyone at the Food Maxx parking lot. I will repeat that again.... Mr. Brown did not intend to rob anyone. [¶] What this case is really gonna be about is a misunderstanding between Mr. Brown and Ms. [Lizbeth] Sanchez.”
Later during trial, defense counsel asked Lizbeth the following question during cross examination:
“Q. The tire iron that we referred to... here earlier today is actually from your car, isn’t it? Or the crow bar?”
After the interpreter translated the question and defense counsel clarified it, Lizbeth replied: “No, never. I never have had this in my car.”
The following day, after both parties had rested their case, the prosecutor made the following comment to the jurors during the opening portion of his final argument:
“[Defense counsel] yesterday afternoon asked a question of Lizbeth Sanchez that was kind of interesting. He said, ‘Isn’t it true that crowbar came from your car, and you were the ones that were attacking poor Mr. Brown?’
“I want to stay there for a second and just flush this thought out a bit. Because if you want to go down that path, you would have to seriously believe that Ms. Sanchez, there with her 13 year old daughter and her younger sister, I guess just got tired of loading their groceries and figured, well, I know what I could do. I could find a man that I don’t know and go after him with a crowbar. Never hitting him, mind you. And then I could make up a whole robbery story. Maybe I could get my younger sister to join me in it. And then we’re gonna fake the crying, and hopefully, hopefully, the innocent man and the innocent woman who were there with him will flee because that will make -- that will make my master plan work that much more. Does that make any sense? Absolutely not. That is unreasonable.
“And that’s why we spend so much time talking about reasonableness. In voir dire I asked you: Can you reject the unreasonable? That’s what being a juror means, rejecting things that are unreasonable, and that is unreasonable. You know what? That’s actually ridiculous. It’s ridiculous.
“[Defense Counsel] stood up here in his opening statement and he said this is just a misunderstanding. It’s not a misunderstanding. This is a robbery. And I remind you, that’s not my words. That’s his words.”
Later during a recess, defense counsel made the following motion to the court: “I do think that [the prosecutor’s] comments at the end where he talked about ridiculous, basically the defense is ridiculous, I thought he was attacking myself as being ridiculous. I think that’s improper. I move for a mistrial. [¶] Obviously you can comment on a defense, but I think he crossed a line, and I think the way he’s phrased it now it’s belittled me, it’s belittled Mr. Brown, and I’d move for a mistrial on those grounds.”
The court asked the prosecutor to respond. He stated as follows: “The comment was directed at the ridiculousness of that interpretation, and I certainly meant no disrespect to counsel. I think I was appropriate in light of the fact that it was an interpretation of evidence that I found so far beyond reasonableness that it actually became ridiculous, so I think a mistrial would be inappropriate....”
The court denied the motion as follows: “Well, it seems to me that the question, when asked, ‘Wasn’t it your crowbar?’ didn’t necessarily, in my opinion, take it to the extreme of your example is that it was a plot to begin this attack as opposed to somebody coming up or the robbery in process and getting a crowbar and having it be yours instead of it coming from Mr. Brown. [¶] So, obviously, the example that you used, that it was a plot from the beginning, I would agree would probably be pretty ridiculous, and I don’t think that that meant that’s what you were insinuating that was his example of let’s go down this path and what I would take from this. [¶] So that’s an extreme example, a little more extreme than maybe I would argue, but I don’t think in any way it meant that you’re ridiculous, [defense counsel], or that Brown’s ridiculous. I just thought that he took it to the absolute, you know, far reaching example of where that might go. And so I’m going to deny the motion for mistrial, and that’s how I took it.”
Appellant now contends the prosecutor committed misconduct when he “malign[ed] defense counsel for having presented such a specious defense.” According to appellant, that act violated case law that prohibits “[p]rosecutorial comment on a criminal defendant’s exercise of the right to an attorney....”
Appellant concedes he never raised this precise argument in the court below. It is forfeited for purposes of appeal. (People v. Slaughter (2002) 27 Cal.4th 1187, 1212 [“Defendant forfeited this issue by failing to object on this ground at trial.”].) The argument also is unpersuasive.
The primary cases appellant cites, People v. Fabert (1982) 127 Cal.App.3d 604, and People v. Schindler (1980) 114 Cal.App.3d 178, do hold that it can be improper for a prosecutor to comment adversely on a defendant’s exercise of his or her constitutional rights. For example, in Fabert, the prosecutor attempted to rebut the defendant’s diminished capacity defense by presenting evidence that the defendant had requested an attorney after she had been advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436. (People v. Fabert, supra, 127 Cal.App.3d at pp. 606, 608.) The Fabert court ruled the prosecutor erred when he “not only impermissibly adduced evidence of defendant’s exercise of her right to counsel but attempted to use [that] evidence to convey the impression that her defense was fabricated.” (Id. at p. 610.)
Similarly in Schindler, the prosecutor, in an attempt to rebut the defendant’s diminished capacity defense, presented evidence that she had requested a certain attorney when she was arrested. (People v. Schindler, supra, 114 Cal.App.3d at pp. 182-185.) The Schindler court ruled that was error: “Defendant had the constitutional right promptly to retain the counsel of her choice who would most effectively defend her. That right was wrongfully impaired. No prosecution testimony should have been admitted regarding her desire to hire any attorney, especially this particular defense attorney, or the defense attorney’s prior role as a prosecutor of the decedent.” (Id. at p. 189.)
The situation here is nothing like that presented in Fabert or Schindler. The prosecutor here did not try to use defendant’s exercise of his Miranda rights against him nor did he attempt to raise an adverse inference based on the defendant’s selection of a particular defense counsel. Rather, the prosecutor simply commented on one aspect of the defense that had been presented at trial, characterizing it as “ridiculous.” That comment may have been harsh, but it was well within the bounds of acceptable vigorous advocacy. Our Supreme Court has made clear that the prosecutor is entitled to “argue the flaws” that are inherent in a defense case. (People v. Marquez (1992) 1 Cal.4th 553, 576.) Indeed, prosecutors have “wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.